WASHINGTON — The Army has implemented two new initiatives to further remove the barriers on combating harmful behaviors and sustain positive command climates. The Safe-to-Report policy safeguards sexual assault victims from disciplinary action for minor collateral misconduct that might be in time, place, or circumstance associated with the sexual assault incident. The Office of Special Trial Counsel is an independent prosecution office that will be dedicated to the investigation, referral and trial-level litigation and prosecution of covered offenses such as murder, rape and child abuse.
This policy, directed by the National Defense Authorization Act for Fiscal Year 2021, applies to all Service members who are victims of sexual assault, including cadets at the United States Military Academy, regardless to whom the victim reports the sexual assault, and regardless of whether the investigation or prosecution is handled by military or civilian authorities.
Studies have shown that victims consider the possibility of disciplinary action against them to be a significant barrier to sexual assault reporting within the military.
“We continue to look for ways to improve the Army’s Sexual Harassment/Assault Response and Prevention program,” said Dr. James A. Helis, Director of the Army Resilience Directorate. “This directive helps reduce the stigma associated with reporting, so offenders can be held accountable for their actions and victims can get the support they need to heal.”
Examples of misconduct that commanders may deem minor under this policy include:
- The victim was drinking while underage at the time of the assault.
- The victim was involved in an unprofessional relationship with the subject at the time of the sexual assault.
- The victim was in violation of lawful orders establishing curfews, off-limit locations, barracks policies or similar matters at the time of the reported sexual assault.
The Safe-to-Report policy provides commanders discretion in assessing whether an offense represents minor collateral misconduct. Commanders must consider the following mitigating factors when deterring whether collateral misconduct is minor:
- The victim’s age and military experience level.
- Whether the subject is in a position of authority over the victim or a higher grade than the victim.
- Whether the subject engaged in actions to stalk, harass, haze, coerce and/or otherwise influence the victim to engage in sexual behavior.
- Whether the command knew about the alleged collateral misconduct before the victim reported the sexual assault, and, if not, whether the collateral misconduct would have been discovered if the victim had not reported an assault.
- Whether the victim engaged in misconduct after the sexual assault, which may be related to symptoms of trauma. For example, whether the victim engaged in underage drinking as a coping mechanism to alleviate sexual assault trauma symptoms
OFFICE OF SPECIAL TRIAL COUNSEL
The office will report directly to the Secretary of the Army Christine E. Wormuth who recently signed Army General Order 2022-10 establishing the new office. The OSTC will take over independent prosecution of specific crimes by December 2023 as directed by the FY22 National Defense Authorization Act.
Offenses covered by the punitive articles of the UCMJ can range from minor disciplinary infractions to serious criminal offenses. The 11 covered offenses are Murder, Manslaughter, Rape, Sexual Assault, Rape of a Child, Sexual Assault of a Child, Other Sexual Misconduct, Kidnapping, Domestic Violence, Stalking, Retaliation, Child Pornography and Wrongful Broadcast.
Judge Advocates will be certified by The Judge Advocate General to serve as Special Trial Counsel and the Office will be led by a General Officer to be announced later, who will also be a Judge Advocate.
The Army’s military justice reforms are well underway and the Army will continue to identify ways to implement improvements to investigation and prosecution of covered offenses.